UNIFORM PROBATE CODE AMENDMENTS (2019)
drafted by the
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
and by it
APPROVED AND RECOMMENDED FOR ENACTMENT
IN ALL THE STATES
at its
ANNUAL CONFERENCE
MEETING IN ITS ONE-HUNDRED-AND-TWENTY-EIGHTH YEAR
ANCHORAGE, ALASKA
JULY 12-18, 2019
WITHOUT PREFATORY NOTE AND COMMENTS
Copyright © 2019
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
August 13, 2020
UNIFORM PROBATE CODE AMENDMENTS (2019)
ARTICLE I
GENERAL PROVISIONS, DEFINITIONS AND, PROBATE JURISDICTION OF
COURT
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PART 2. DEFINITIONS
SECTION 1-201. GENERAL DEFINITIONS.
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(5) “Child” includes an individual entitled to take as a child under this [code] by intestate
succession from the parent whose relationship is involved and excludes a person who is only a
stepchild, a foster child, a grandchild, or any more remote descendant means an individual of any
age whose parentage is established under [cite to Uniform Parentage Act (2017)][cite to state’s
parentage act][applicable state law].
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(32) “Parent” includes any person entitled to take, or who would be entitled to take if the
child died without a will, as a parent under this [code] by intestate succession from the child
whose relationship is in question and excludes any person who is only a stepparent, foster parent,
or grandparent means an individual who has established a parent-child relationship under [cite to
Uniform Parentage Act (2017)][cite to state’s parentage act][applicable state law].
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(51) “Survive” means that an individual has neither predeceased an event, including the
death of another individual, nor is deemed to have predeceased an event under Section 2-104 or
2-702 this [code]. The term includes its derivatives, such as “survives”, “survived”, “survivor”,
or “surviving”.
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Legislative Note to Paragraphs (5) and (32): The first bracketed option is for states that have
enacted the Uniform Parentage Act (2017). The second bracketed option is for states that have
enacted a parentage act other than the Uniform Parentage Act (2017). The third bracketed
option is for states that do not have a statute governing the establishment of parent-child
relationships. The reference to “applicable state law” includes statutory, regulatory, and case
law.
ARTICLE II
INTESTACY, WILLS, AND DONATIVE TRANSFERS
Legislative Note: References to spouse or marriage appear throughout Article II. States that
recognize civil unions, domestic partnerships, or similar relationships between unmarried
individuals should add appropriate language wherever such references or similar references
appear.
States that do not recognize such relationships between unmarried individuals, or
marriages between same-sex partners, are urged to consider whether to recognize the spousaltype rights that partners acquired under the law of another jurisdiction in which the relationship
was formed but who die domiciled in this state. Doing so would not be the equivalent of
recognizing such relationships in this state but simply allowing those who move to and die in this
state to retain the rights they previously acquired elsewhere. See Christine A. Hammerle, Note,
Free Will to Will? A Case for the Recognition of Intestacy Rights for Survivors to a Same-Sex
Marriage or Civil Union, 104 Mich. L. Rev. 1763 (2006).
A state’s recognition of spousal-type rights has relevance not only for the individuals but
also for their children. See Section 2-119(b).
Throughout this article, the bracketed phrase “applicable state law” includes a state’s
statutory, regulatory, and case law.
PART 1. INTESTATE SUCCESSION
Subpart 1. General Rules
SECTION 2-101. INTESTATE ESTATE.
(a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate
succession to the decedent’s heirs as prescribed in this [code], except as modified by the
decedent’s will.
(b) A decedent by will may expressly exclude or limit the right of an individual or class
to succeed to property of the decedent passing by intestate succession. If that individual or a
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member of that class survives the decedent, the share of the decedent’s intestate estate to which
that individual or class would have succeeded passes as if that individual or each member of that
class had disclaimed his [or her] the intestate share.
***
SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE.
(a) Any part of the intestate estate not passing to a decedent’s surviving spouse under
Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following
order to the individuals who survive the decedent:
(1) to the decedent’s descendants by representation;
(2) if there is no surviving descendant, to the decedent’s parents equally if both
survive, or to the surviving parent if only one survives;
(3) if there is no surviving descendant or parent, to the descendants of the
decedent’s parents or either of them by representation;
(4) if there is no surviving descendant, parent, or descendant of a parent, but the
decedent is survived on both the paternal and maternal sides by one or more grandparents or
descendants of grandparents:
(A) half to the decedent’s paternal grandparents equally if both survive, to
the surviving paternal grandparent if only one survives, or to the descendants of the decedent’s
paternal grandparents or either of them if both are deceased, the descendants taking by
representation; and
(B) half to the decedent’s maternal grandparents equally if both survive, to
the surviving maternal grandparent if only one survives, or to the descendants of the decedent’s
maternal grandparents or either of them if both are deceased, the descendants taking by
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representation;
(5) if there is no surviving descendant, parent, or descendant of a parent, but the
decedent is survived by one or more grandparents or descendants of grandparents on the paternal
but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives
on the side with one or more surviving members in the manner described in paragraph (4).
(b) If there is no taker under subsection (a), but the decedent has:
(1) one deceased spouse who has one or more descendants who survive the
decedent, the estate or part thereof passes to that spouse’s descendants by representation; or
(2) more than one deceased spouse who has one or more descendants who survive
the decedent, an equal share of the estate or part thereof passes to each set of descendants by
representation.
(a) [Definitions.] In this section:
(1) “Deceased parent”, “deceased grandparent”, or “deceased spouse” means a
parent, grandparent, or spouse who either predeceased the decedent or is deemed under this
[article] to have predeceased the decedent.
(2) “Surviving spouse”, “surviving descendant”, “surviving parent”, or “surviving
grandparent” means a spouse, descendant, parent, or grandparent who neither predeceased the
decedent nor is deemed under this [article] to have predeceased the decedent.
(b) [Heirs Other Than Surviving Spouse.] Any part of the intestate estate not passing
under Section 2-102 to the decedent’s surviving spouse passes to the decedent’s descendants or
parents as provided in subsections (c) and (d). If there is no surviving spouse, the entire intestate
estate passes to the decedent’s descendants, parents, or other heirs as provided in subsections (c)
through (j).
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(c) [Surviving Descendant.] If a decedent is survived by one or more descendants, any
part of the intestate estate not passing to the surviving spouse passes by representation to the
decedent’s surviving descendants.
(d) [Surviving Parent.] If a decedent is not survived by a descendant but is survived by
one or more parents, any part of the intestate estate not passing to the surviving spouse is
distributed as follows:
(1) The intestate estate or part is divided into as many equal shares as there are:
(A) surviving parents; and
(B) deceased parents with one or more surviving descendants, if any, as
determined under subsection (e).
(2) One share passes to each surviving parent.
(3) The balance of the intestate estate or part, if any, passes by representation to
the surviving descendants of the decedent’s deceased parents, as determined under subsection
(e).
(e) [When Parent Survives: Computation of Shares of Surviving Descendants of
Deceased Parent.] The following rules apply under subsection (d) to determine whether a
deceased parent of the decedent is treated as having a surviving descendant:
(1) If all the surviving descendants of one or more deceased parents also are
descendants of one or more surviving parents and none of those surviving parents has any other
surviving descendant, those descendants are deemed to have predeceased the decedent.
(2) If two or more deceased parents have the same surviving descendants and
none of those deceased parents has any other surviving descendant, those deceased parents are
deemed to be one deceased parent with surviving descendants.
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(f) [Surviving Descendant of Deceased Parent.] If a decedent is not survived by a
descendant or parent but is survived by one or more descendants of a parent, the intestate estate
passes by representation to the surviving descendants of the decedent’s deceased parents.
(g) [Surviving Grandparent.] If a decedent is not survived by a descendant, parent, or
descendant of a parent but is survived by one or more grandparents, the intestate estate is
distributed as follows:
(1) The intestate estate is divided into as many equal shares as there are:
(A) surviving grandparents; and
(B) deceased grandparents with one or more surviving descendants, if any,
as determined under subsection (h).
(2) One share passes to each surviving grandparent.
(3) The balance of the intestate estate, if any, passes by representation to the
surviving descendants of the decedent’s deceased grandparents, as determined under subsection
(h).
(h) [When Grandparent Survives: Computation of Shares of Surviving Descendants
of Deceased Grandparent.] The following rules apply under subsection (g) to determine
whether a deceased grandparent of the decedent is treated as having a surviving descendant:
(1) If all the surviving descendants of one or more deceased grandparents also are
descendants of one or more surviving grandparents and none of those surviving grandparents has
any other surviving descendant, those descendants are deemed to have predeceased the decedent.
(2) If two or more deceased grandparents have the same surviving descendants
and none of those deceased grandparents has any other surviving descendant, those deceased
grandparents are deemed to be one deceased grandparent with surviving descendants.
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(i) [Surviving Descendant of Deceased Grandparent.] If a decedent is not survived by
a descendant, parent, descendant of a parent, or grandparent but is survived by one or more
descendants of a grandparent, the intestate estate passes by representation to the surviving
descendants of the decedent’s deceased grandparents.
(j) [Surviving Descendant of Deceased Spouse.] If a decedent is not survived by a
descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent but is
survived by one or more descendants of one or more deceased spouses, the intestate estate passes
by representation to the surviving descendants of the deceased spouse or spouses.
SECTION 2-104. REQUIREMENT OF SURVIVAL BY 120 HOURS;
INDIVIDUAL IN GESTATION GESTATIONAL PERIOD; PREGNANCY AFTER
DECEDENT’S DEATH.
(a) [Definitions.] In this section:
(1) “Assisted reproduction” means a method of causing pregnancy other than
sexual intercourse.
(2) “Gestational period” means the time between the start of a pregnancy and
birth.
(a)(b) [Requirement of Survival by 120 Hours; Individual in Gestation Gestational
Period; Pregnancy After Decedent’s Death.] For purposes of intestate succession, homestead
allowance, and exempt property, and except as otherwise provided in subsection (b)(c), the
following rules apply:
(1) An individual born before a decedent’s death who fails to survive the decedent
by 120 hours is deemed to have predeceased the decedent. If it is not established by clear and
convincing evidence that an individual born before the decedent’s death survived the decedent
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by 120 hours, it is deemed that the individual failed to survive for the required period.
(2) An individual in gestation at the decedent’s death is deemed to be living at the
decedent’s death if the individual lives 120 hours after birth. If the decedent dies during a
gestational period that results in the birth of an individual who lives at least 120 hours after birth,
that individual is deemed to be living at the decedent’s death. If it is not established by clear and
convincing evidence that the individual lived 120 hours after birth, it is deemed that the
individual failed to survive for the required period.
(3) If the decedent dies before the start of a pregnancy by assisted reproduction
resulting in the birth of an individual who lives at least 120 hours after birth, that individual is
deemed to be living at the decedent’s death if [the decedent’s personal representative, not later
than [6] months after the decedent’s death, received notice or had actual knowledge of an intent
to use genetic material in the assisted reproduction and]:
(A) the embryo was in utero not later than [36] months after the
decedent’s death; or
(B) the individual was born not later than [45] months after the decedent’s
death.
(b)(c) [Section Inapplicable if Estate Would Pass to State.] This section does not apply
if its application would cause the estate to pass to the state under Section 2-105.
Legislative Note: A state enacting this section should consider enacting a provision akin to
Section 3-703(d). Such a provision might be expanded to require a personal representative,
when notifying potential devisees or heirs of the personal representative’s appointment, to
inquire whether a devisee or heir has knowledge of an intent to use genetic material in assisted
reproduction. A state also should consider requiring the personal representative to indicate that
a devisee or heir who has such information must give written notice to the personal
representative within a designated time.
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SECTION 2-106. REPRESENTATION.
(a) [Definitions.] In this section:
(1) “Deceased descendant”, “deceased parent”, or “deceased grandparent”, or
“deceased spouse” means a descendant, parent, or grandparent, or spouse who either predeceased
the decedent or is deemed under this [article] to have predeceased the decedent under Section 2104.
(2) “Surviving descendant” means a descendant who neither predeceased the
decedent nor is deemed under this [article] to have predeceased the decedent under Section 2104.
(b) [Decedent’s Descendants.] If, under Section 2-103(a)(1)(c), all or part of a
decedent’s intestate estate or a part thereof passes “by representation” to the decedent’s surviving
descendants, the estate or part thereof is divided into as many equal shares as there are (i)
surviving descendants in the generation nearest to the decedent which contains one or more
surviving descendants and (ii) deceased descendants in the same generation who left surviving
descendants, if any. Each surviving descendant in the nearest generation is allocated one share.
The remaining shares, if any, are combined and then divided in the same manner among the
surviving descendants of the deceased descendants as if the surviving descendants who were
allocated a share and their surviving descendants had predeceased the decedent.
(c) [Descendants of Parents or Grandparents.] If, under Section 2-103(a)(3) or (4), a
decedent’s intestate estate or a part thereof passes “by representation” to the descendants of the
decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased
paternal or maternal grandparents or either of them, the estate or part thereof is divided into as
many equal shares as there are (i) surviving descendants in the generation nearest the deceased
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parents or either of them, or the deceased grandparents or either of them, that contains one or
more surviving descendants and (ii) deceased descendants in the same generation who left
surviving descendants, if any. Each surviving descendant in the nearest generation is allocated
one share. The remaining shares, if any, are combined and then divided in the same manner
among the surviving descendants of the deceased descendants as if the surviving descendants
who were allocated a share and their surviving descendants had predeceased the decedent.
(c) [Descendants of Parent When Parent Survives.] If a decedent is survived by one or
more parents and, under Section 2-103(d) and (e), the balance of the decedent’s intestate estate
or part passes by representation to the surviving descendants of one or more of the decedent’s
deceased parents, the balance passes to those descendants as if they were the decedent’s
surviving descendants under subsection (b).
(d) [Descendants of Parent When No Parent Survives.] If a decedent is not survived
by a parent and, under Section 2-103(f), the decedent’s intestate estate passes by representation
to the surviving descendants of one or more of the decedent’s deceased parents, the intestate
estate passes to those descendants as if they were the decedent’s surviving descendants under
subsection (b).
(e) [Descendants of Grandparent When Grandparent Survives.] If a decedent is
survived by one or more grandparents and, under Section 2-103(g) and (h), the balance of the
decedent’s intestate estate passes by representation to the surviving descendants of one or more
of the decedent’s deceased grandparents, the balance passes to those descendants as if they were
the decedent’s surviving descendants under subsection (b).
(f) [Descendants of Grandparent When No Grandparent Survives.] If a decedent is
not survived by a grandparent and, under Section 2-103(i), the decedent’s intestate estate passes
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by representation to the surviving descendants of one or more of the decedent’s deceased
grandparents, the intestate estate passes to those descendants as if they were the decedent’s
surviving descendants under subsection (b).
(g) [Descendants of Deceased Spouse.] If a decedent is survived by descendants of one
or more deceased spouses and, under Section 2-103(j), the decedent’s intestate estate passes by
representation to the surviving descendants of one or more of the decedent’s deceased spouses,
the intestate estate passes to those descendants as if they were the decedent’s surviving
descendants under subsection (b).
SECTION 2-107. KINDRED OF HALF BLOOD INHERITANCE WITHOUT
REGARD TO NUMBER OF COMMON ANCESTORS IN SAME GENERATION.
Relatives of the half blood inherit the same share they would inherit if they were of the whole
blood. An heir inherits without regard to how many common ancestors in the same generation
the heir shares with the decedent.
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SECTION 2-109. ADVANCEMENTS.
(a) If an individual dies intestate as to all or a portion of his [or her] the estate, property
the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is
an heir is treated as an advancement against the heir’s intestate share only if (i) the decedent
declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an
advancement or (ii) the decedent’s contemporaneous writing or the heir’s written
acknowledgment otherwise indicates that the gift is to be taken into account in computing the
division and distribution of the decedent’s intestate estate.
***
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SECTION 2-113. INDIVIDUAL RELATED TO DECEDENT THROUGH TWO
LINES MORE THAN ONE LINE. An individual who is related to the a decedent through two
lines more than one line of relationship is entitled to only a single share based on the relationship
that would entitle the individual to the larger largest share. The individual and the individual’s
descendants are deemed to have predeceased the decedent with respect to a line of relationship
resulting in a smaller share.
SECTION 2-114. PARENT BARRED FROM INHERITING IN CERTAIN
CIRCUMSTANCES.
(a) A parent is barred from inheriting from or through a child of the parent if:
(1) the parent’s parental rights were terminated and the parent-child relationship
was not judicially reestablished; or
(2) the child died before reaching [18] years of age and there is clear and
convincing evidence that immediately before the child’s death the parental rights of the parent
could have been terminated under law of this state other than this [code] on the basis of
nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the
child.
(b) For the purpose of intestate succession from or through the deceased child, a parent
who is barred from inheriting under this section is treated as if the parent deemed to have
predeceased the child.
(c) Except as otherwise provided in Section 2-119(b), the termination of a parent’s
parental rights to a child has no effect on the right of the child or a descendant of the child to
inherit from or through the parent.
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Subpart 2. Parent-Child Relationship
SECTION 2-115. DEFINITIONS. In this [subpart]:
(1) “Adoptee” means an individual who is adopted.
(2) “Assisted reproduction” means a method of causing pregnancy other than sexual
intercourse.
(3) “De facto parent” means an individual who is adjudicated on the basis of de facto
parentage under [cite to Uniform Parentage Act (2017)][cite to state’s parentage act][applicable
state law] to be a parent of a child.
(3) “Divorce” includes an annulment, dissolution, and declaration of invalidity of a
marriage.
(4) “Functioned as a parent of the child” means behaving toward a child in a manner
consistent with being the child’s parent and performing functions that are customarily performed
by a parent, including fulfilling parental responsibilities toward the child, recognizing or holding
out the child as the individual’s child, materially participating in the child’s upbringing, and
residing with the child in the same household as a regular member of that household.
(5) “Genetic father” means the man whose sperm fertilized the egg of a child’s genetic
mother. If the father-child relationship is established under the presumption of paternity under
[insert applicable state law], the term means only the man for whom that relationship is
established.
(6) “Genetic mother” means the woman whose egg was fertilized by the sperm of a
child’s genetic father.
(7) “Genetic parent” means a child’s genetic father or genetic mother.
(8) “Incapacity” means the inability of an individual to function as a parent of a child
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because of the individual’s physical or mental condition.
(9)(4) “Relative” means a grandparent or a descendant of a grandparent.
Legislative Note to Paragraph (3): The first bracketed option is for states that have enacted the
Uniform Parentage Act (2017). The second bracketed option is for states that have enacted a
parentage act, other than the Uniform Parentage Act (2017), governing de facto parentage. The
third bracketed option is for states that do not have a statute governing de facto parentage.
SECTION 2-116. EFFECT OF PARENT-CHILD RELATIONSHIP SCOPE.
Except as otherwise provided in Section 2-119(b) through (e), if a parent child relationship exists
or is established under this [subpart], the parent is a parent of the child and the child is a child of
the parent for the purpose of intestate succession. The rules in this [subpart] concerning a parentchild relationship apply for the purpose of intestate succession.
SECTION 2-117. NO DISTINCTION BASED ON MARITAL STATUS OF
PARENT. Except as otherwise provided in Sections 2-114, 2-119, 2-120, or 2-121, a parentchild relationship exists between a child and the child’s genetic parents, regardless of the
parents’ marital status. A parent-child relationship extends equally to every child and parent,
regardless of the marital status of the parent.
SECTION 2-118. ADOPTEE AND ADOPTEE’S ADOPTIVE PARENT OR
PARENTS PARENT-CHILD RELATIONSHIP ESTABLISHED THROUGH ADOPTION
OR DE FACTO PARENTAGE.
(a) [Parent-Child Relationship Between Adoptee and Adoptive Parent or Parents
Established Through Adoption.] A parent-child relationship exists between an adoptee and the
adoptee’s adoptive parent.
(b) [Individual in Process of Being Adopted by Married Couple; Stepchild in
Process of Being Adopted by Stepparent.] For purposes of subsection (a):
(1) an individual who is in the process of being adopted by a married couple when
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one of the spouses dies is treated as adopted by the deceased spouse if the adoption is
subsequently granted to the decedent’s surviving spouse; and
(2) a child of a genetic parent who is in the process of being adopted by a genetic
parent’s spouse when the spouse dies is treated as adopted by the deceased spouse if the genetic
parent survives the deceased spouse by 120 hours.
(c) [Child of Assisted Reproduction or Gestational Child In Process of Being
Adopted.] If, after a parent-child relationship is established between a child of assisted
reproduction and a parent under Section 2-120 or between a gestational child and a parent under
Section 2-121, the child is in the process of being adopted by the parent’s spouse when that
spouse dies, the child is treated as adopted by the deceased spouse for the purpose of subsection
(b)(2).
(b) [Parent-Child Relationship Established Through De Facto Parentage.] A parentchild relationship exists between an individual and the individual’s de facto parent.
SECTION 2-119. ADOPTEE AND ADOPTEE’S GENETIC PARENTS EFFECT
OF ADOPTION; EFFECT OF DE FACTO PARENTAGE.
(a) [Parent-Child Relationship Between Adoptee and Genetic Parents.] Except as
otherwise provided in subsections (b) through (e), a parent-child relationship does not exist
between an adoptee and the adoptee’s genetic parents.
(b) [Stepchild Adopted by Stepparent.] A parent-child relationship exists between an
individual who is adopted by the spouse of either genetic parent and:
(1) the genetic parent whose spouse adopted the individual; and
(2) the other genetic parent, but only for the purpose of the right of the adoptee or
a descendant of the adoptee to inherit from or through the other genetic parent.
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(c) [Individual Adopted by Relative of a Genetic Parent.] A parent-child relationship
exists between both genetic parents and an individual who is adopted by a relative of a genetic
parent, or by the spouse or surviving spouse of a relative of a genetic parent, but only for the
purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through
either genetic parent.
(d) [Individual Adopted After Death of Both Genetic Parents.] A parent-child
relationship exists between both genetic parents and an individual who is adopted after the death
of both genetic parents, but only for the purpose of the right of the adoptee or a descendant of the
adoptee to inherit through either genetic parent.
(e) [Child of Assisted Reproduction or Gestational Child Who Is Subsequently
Adopted.] If, after a parent-child relationship is established between a child of assisted
reproduction and a parent or parents under Section 2-120 or between a gestational child and a
parent or parents under Section 2-121, the child is adopted by another or others, the child’s
parent or parents under Section 2-120 or 2-121 are treated as the child’s genetic parent or parents
for the purpose of this section.
(a) [Definitions.] In this section:
(1) “Parent before the adjudication” means an individual who is a parent of a
child:
(A) immediately before another individual is adjudicated a de facto parent
of the child; or
(B) immediately before dying, or being deemed under this [article] to have
died, and before another individual is adjudicated a de facto parent of the child.
(2) “Parent before the adoption” means an individual who is a parent of a child:
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(A) immediately before another individual adopts the child; or
(B) immediately before dying, or being deemed under this [article] to have
died, and before another individual adopts the child.
(b) [Effect of Adoption on Parent Before the Adoption.] A parent-child relationship
does not exist between an adoptee and an individual who was the adoptee’s parent before the
adoption unless:
(1) otherwise provided by [court order or] law other than this [code]; or
(2) the adoption:
(A) was by the spouse of a parent before the adoption;
(B) was by a relative or the spouse or surviving spouse of a relative of a
parent before the adoption; or
(C) occurred after the death of a parent before the adoption.
(c) [Effect of De Facto Parentage on Parent Before the Adjudication.] Except as
otherwise provided by a court order [under Uniform Parentage Act (2017) Section 613], an
adjudication that an individual is a child of a de facto parent does not affect a parent-child
relationship between the child and an individual who was the child’s parent before the
adjudication.
Legislative Note: The bracketed language in subsection (c) is for states that have enacted the
Uniform Parentage Act (2017).
SECTION 2-120. CHILD INDIVIDUAL CONCEIVED BY ASSISTED
REPRODUCTION BUT NOT CHILD BORN TO GESTATIONAL CARRIER OR
GENETIC SURROGATE. Except as otherwise provided under Section 2-121, parentage of an
individual conceived by assisted reproduction is determined under [cite to Uniform Parentage
Act (2017) Article 7 other than Section 708(b)(2)][cite to equivalent provisions of state’s
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parentage act][applicable state law].
(a) [Definitions.] In this section:
(1) “Birth mother” means a woman, other than a gestational carrier under Section
2-121, who gives birth to a child of assisted reproduction. The term is not limited to a woman
who is the child’s genetic mother.
(2) “Child of assisted reproduction” means a child conceived by means of assisted
reproduction by a woman other than a gestational carrier under Section 2-121.
(3) “Third-party donor” means an individual who produces eggs or sperm used for
assisted reproduction, whether or not for consideration. The term does not include:
(A) a husband who provides sperm, or a wife who provides eggs, that are
used for assisted reproduction by the wife;
(B) the birth mother of a child of assisted reproduction; or
(C) an individual who has been determined under subsection (e) or (f) to
have a parent-child relationship with a child of assisted reproduction.
(b) [Third-Party Donor.] A parent-child relationship does not exist between a child of
assisted reproduction and a third-party donor.
(c) [Parent-Child Relationship with Birth Mother.] A parent-child relationship exists
between a child of assisted reproduction and the child’s birth mother.
(d) [Parent-Child Relationship with Husband Whose Sperm Were Used During His
Lifetime by His Wife for Assisted Reproduction.] Except as otherwise provided in subsections
(i) and (j), a parent-child relationship exists between a child of assisted reproduction and the
husband of the child’s birth mother if the husband provided the sperm that the birth mother used
during his lifetime for assisted reproduction.
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(e) [Birth Certificate: Presumptive Effect.] A birth certificate identifying an individual
other than the birth mother as the other parent of a child of assisted reproduction presumptively
establishes a parent-child relationship between the child and that individual.
(f) [Parent-Child Relationship with Another.] Except as otherwise provided in
subsections (g), (i), and (j), and unless a parent-child relationship is established under subsection
(d) or (e), a parent-child relationship exists between a child of assisted reproduction and an
individual other than the birth mother who consented to assisted reproduction by the birth mother
with intent to be treated as the other parent of the child. Consent to assisted reproduction by the
birth mother with intent to be treated as the other parent of the child is established if the
individual:
(1) before or after the child’s birth, signed a record that, considering all the facts
and circumstances, evidences the individual’s consent; or
(2) in the absence of a signed record under paragraph (1):
(A) functioned as a parent of the child no later than two years after the
child’s birth;
(B) intended to function as a parent of the child no later than two years
after the child’s birth but was prevented from carrying out that intent by death, incapacity, or
other circumstances; or
(C) intended to be treated as a parent of a posthumously conceived child,
if that intent is established by clear and convincing evidence.
(g) [Record Signed More than Two Years after the Birth of the Child: Effect.] For
the purpose of subsection (f)(1), neither an individual who signed a record more than two years
after the birth of the child, nor a relative of that individual who is not also a relative of the birth
19
mother, inherits from or through the child unless the individual functioned as a parent of the
child before the child reached [18] years of age.
(h) [Presumption: Birth Mother is Married or Surviving Spouse.] For the purpose of
subsection (f)(2), the following rules apply:
(1) If the birth mother is married and no divorce proceeding is pending, in the
absence of clear and convincing evidence to the contrary, her spouse satisfies subsection
(f)(2)(A) or (B).
(2) If the birth mother is a surviving spouse and at her deceased spouse’s death no
divorce proceeding was pending, in the absence of clear and convincing evidence to the contrary,
her deceased spouse satisfies subsection (f)(2)(B) or (C).
(i) [Divorce Before Placement of Eggs, Sperm, or Embryos.] If a married couple is
divorced before placement of eggs, sperm, or embryos, a child resulting from the assisted
reproduction is not a child of the birth mother’s former spouse, unless the former spouse
consented in a record that if assisted reproduction were to occur after divorce, the child would be
treated as the former spouse’s child.
(j) [Withdrawal of Consent Before Placement of Eggs, Sperm, or Embryos.] If, in a
record, an individual withdraws consent to assisted reproduction before placement of eggs,
sperm, or embryos, a child resulting from the assisted reproduction is not a child of that
individual, unless the individual subsequently satisfies subsection (f).
(k) [When Posthumously Conceived Child Treated as in Gestation.] If, under this
section, an individual is a parent of a child of assisted reproduction who is conceived after the
individual’s death, the child is treated as in gestation at the individual’s death for purposes of
Section 2-104(a)(2) if the child is:
20
(1) in utero not later than 36 months after the individual’s death; or
(2) born not later than 45 months after the individual’s death.
Legislative Note: States are encouraged to enact a provision requiring genetic depositories to
provide a consent form that would satisfy subsection (f)(1). See Cal. Health & Safety Code §
1644.7 and .8 for a possible model for such a consent form.
Legislative Note: The first bracketed option is for states that have enacted the Uniform
Parentage Act (2017). The reason for excluding Section 708(b)(2) is given in the Comment,
especially Examples 1 and 2. The second bracketed option is for states that have enacted a
parentage act, other than the Uniform Parentage Act (2017), governing parent-child
relationships created by assisted reproduction. The third bracketed option is for states that do
not have a statute governing parent-child relationships created by assisted reproduction. The
reference to “applicable state law” includes statutory, regulatory, and case law.
SECTION 2-121. CHILD INDIVIDUAL BORN TO GESTATIONAL CARRIER
OR GENETIC SURROGATE. Parentage of an individual conceived by assisted reproduction
and born to a gestational or genetic surrogate is determined under [cite to Uniform Parentage Act
(2017) Article 8 other than Sections 810(b)(2) and 817(b)(2)][cite to equivalent provisions of
state’s parentage act][applicable state law].
(a) [Definitions.] In this section:
(1) “Gestational agreement” means an enforceable or unenforceable agreement
for assisted reproduction in which a woman agrees to carry a child to birth for an intended
parent, intended parents, or an individual described in subsection (e).
(2) “Gestational carrier” means a woman who is not an intended parent and gives
birth to a child under a gestational agreement. The term is not limited to a woman who is the
child’s genetic mother.
(3) “Gestational child” means a child born to a gestational carrier under a
gestational agreement.
(4) “Intended parent” means an individual who entered into a gestational
21
agreement providing that the individual will be the parent of a child born to a gestational carrier
by means of assisted reproduction. The term is not limited to an individual who has a genetic
relationship with the child.
(b) [Court Order Adjudicating Parentage: Effect.] A parent-child relationship is
conclusively established by a court order designating the parent or parents of a gestational child.
(c) [Gestational Carrier.] A parent-child relationship between a gestational child and the
child’s gestational carrier does not exist unless the gestational carrier is:
(1) designated as a parent of the child in a court order described in subsection (b);
or
(2) the child’s genetic mother and a parent-child relationship does not exist under
this section with an individual other than the gestational carrier.
(d) [Parent-Child Relationship With Intended Parent or Parents.] In the absence of a
court order under subsection (b), a parent-child relationship exists between a gestational child
and an intended parent who:
(1) functioned as a parent of the child no later than two years after the child’s
birth; or
(2) died while the gestational carrier was pregnant if:
(A) there were two intended parents and the other intended parent
functioned as a parent of the child no later than two years after the child’s birth;
(B) there were two intended parents, the other intended parent also died
while the gestational carrier was pregnant, and a relative of either deceased intended parent or
the spouse or surviving spouse of a relative of either deceased intended parent functioned as a
parent of the child no later than two years after the child’s birth; or
22
(C) there was no other intended parent and a relative of or the spouse or
surviving spouse of a relative of the deceased intended parent functioned as a parent of the child
no later than two years after the child’s birth.
(e) [Gestational Agreement After Death or Incapacity.] In the absence of a court order
under subsection (b), a parent-child relationship exists between a gestational child and an
individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a
child under a gestational agreement entered into after the individual’s death or incapacity if the
individual intended to be treated as the parent of the child. The individual’s intent may be shown
by:
(1) a record signed by the individual which considering all the facts and
circumstances evidences the individual’s intent; or
(2) other facts and circumstances establishing the individual’s intent by clear and
convincing evidence.
(f) [Presumption: Gestational Agreement After Spouse’s Death or Incapacity.]
Except as otherwise provided in subsection (g), and unless there is clear and convincing evidence
of a contrary intent, an individual is deemed to have intended to be treated as the parent of a
gestational child for purposes of subsection (e)(2) if:
(1) the individual, before death or incapacity, deposited the sperm or eggs that
were used to conceive the child;
(2) when the individual deposited the sperm or eggs, the individual was married
and no divorce proceeding was pending; and
(3) the individual’s spouse or surviving spouse functioned as a parent of the child
no later than two years after the child’s birth.
23
(g) [Subsection (f) Presumption Inapplicable.] The presumption under subsection (f)
does not apply if there is:
(1) a court order under subsection (b); or
(2) a signed record that satisfies subsection (e)(1).
(h) [When Posthumously Conceived Gestational Child Treated as in Gestation.] If,
under this section, an individual is a parent of a gestational child who is conceived after the
individual’s death, the child is treated as in gestation at the individual’s death for purposes of
Section 2-104(a)(2) if the child is:
(1) in utero not later than 36 months after the individual’s death; or
(2) born not later than 45 months after the individual’s death.
(i) [No Effect on Other Law.] This section does not affect law of this state other than
this [code] regarding the enforceability or validity of a gestational agreement.
Legislative Note: The first bracketed option is for states that have enacted the Uniform
Parentage Act (2017). The reason for excluding Sections 810(b)(2) and 817(b)(2) is given in the
Comment, especially in Examples 1 and 2. The second bracketed option is for states that have
enacted a parentage act, other than the Uniform Parentage Act (2017), governing parent-child
relationships created by assisted reproduction. The third bracketed option is for states that do
not have a statute governing parent-child relationships created by assisted reproduction. The
reference to “applicable state law” includes statutory, regulatory, and case law.
***
PART 2. ELECTIVE SHARE OF SURVIVING SPOUSE
***
SECTION 2-201. DEFINITIONS. In this [part]:
***
(6) “Presently exercisable general power of appointment” means a power of
appointment under which, at the time in question, the decedent, whether or not he [or she]
24
then had the capacity to exercise the power, held a power to create a present or future
interest in himself [or herself] the decedent, his [or her] the decedent’s creditors, his [or
her] the decedent’s estate, or creditors of his [or her] the decedent’s estate, whether or not
the decedent then had the capacity to exercise the power., and The term includes a power
to revoke or invade the principal of a trust or other property arrangement.
***
(9) “Transfer”, as it relates to a transfer by or of the decedent, includes:
(A) an exercise or release of a presently exercisable general power of
appointment held by the decedent,
(B) a lapse at death of a presently exercisable general power of
appointment held by the decedent, and
(C) an exercise, release, or lapse of a general power of appointment that
the decedent created in himself [or herself] and reserved or of a power described in
Section 2-205(2)(B) that the decedent conferred on a nonadverse party.
***
PART 3. SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
***
SECTION 2-302. OMITTED CHILD.
(a) [Parent-Child Relationship Established After Execution of Will.] Except as
provided in subsection (b), if a testator becomes a parent of a child after the execution of the
testator’s will and fails to provide in his [or her] the will for any of his [or her] children born or
adopted after the execution of the will the child, the omitted after-born or after-adopted child
receives a share in the estate as follows:
25
(1) If the testator had no child living when he [or she] the testator executed the
will, an the omitted after-born or after-adopted child receives a share in the estate equal in value
to that which the child would have received had the testator died intestate, unless the will devised
all or substantially all of the estate to the other another parent of the omitted child and that parent
survives the testator and is entitled to take under the will.
(2) If the testator had one or more children living when he [or she] the testator
executed the will, and the will devised property or an interest in property to one or more of the
then-living children, an the omitted after-born or after-adopted child is entitled to share in the
testator’s estate as follows:
(A) The portion of the testator’s estate in which the omitted after-born or
after-adopted child is entitled to share is limited to devises made to the testator’s then-living
children under the will.
(B) The omitted after-born or after-adopted child is entitled to receive the
share of the testator’s estate, as limited in subparagraph (A), that the child would have received
had the testator included all omitted after-born and after-adopted children with the children to
whom devises were made under the will and had given an equal share of the estate to each child.
(C) To the extent feasible, the interest granted an the omitted after-born or
after-adopted child under this section must be of the same character, whether equitable or legal,
present or future, as that devised to the testator’s then-living children under the will.
(D) In satisfying the satisfaction of a share provided by this paragraph,
devises to the testator’s children who were living when the will was executed abate ratably. In
abating the devises of the then-living children, the court shall preserve to the maximum extent
possible the character of the testamentary plan adopted by the testator.
26
(b) [Intentional Omission of Child; Provision for Child Outside Will.] Neither
subsection (a)(1) nor subsection (a)(2) applies if:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the omitted after-born or after adopted child by
transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is
shown by the testator’s statements or is reasonably inferred from the amount of the transfer or
other evidence.
(c) [Omission of Child Believed Dead.] If at the time of execution of the will the testator
fails to provide in his [or her] the will for a living child solely because he [or she] the testator
believes the child to be dead, the child is entitled to share in the estate as if the child were an
omitted after-born or after-adopted child.
(d) [Abatement.] In satisfying the satisfaction of a share provided by subsection (a)(1),
devises made by the will abate under Section 3-902.
***
PART 7. RULES OF CONSTRUCTION APPLICABLE TO WILLS AND OTHER
GOVERNING INSTRUMENTS
***
SECTION 2-705. CLASS GIFTS CONSTRUED TO ACCORD WITH INTESTATE
SUCCESSION; EXCEPTIONS.
(a) [Definitions.] In this section:
(1) “Adoptee” has the meaning set forth in Section 2-115.
(1) “Assisted reproduction” has the meaning set forth in Section 2-115.
(2) “Child of assisted reproduction” has the meaning set forth in Section 2-120.
(2) “De facto parent” has the meaning set forth in Section 2-115.
27
(3) “Distribution date” means the time when an immediate or a postponed class
gift is to take effect in possession or enjoyment.
(4) “Functioned as a parent of the adoptee” has the meaning set forth in Section 2115, substituting “adoptee” for “child” in that definition.
(5) “Functioned as a parent of the child” has the meaning set forth in Section 2115.
(6) “Genetic parent” has the meaning set forth in Section 2-115.
(7) “Gestational child” has the meaning set forth in Section 2-121.
(4) “Gestational period” has the meaning set forth in Section 2-104.
(5) “In-law” includes a stepchild.
(8)(6) “Relative” has the meaning set forth in Section 2-115.
(b) [Terms of Relationship.] A class gift that uses a term of relationship to identify the
class members includes a child of assisted reproduction, a gestational child, and, except as
otherwise provided in subsections (e) and (f), an adoptee and a child born to parents who are not
married to each other, and their respective descendants if appropriate to the class, in accordance
with the rules for intestate succession regarding parent-child relationships. For the purpose of
determining whether a contrary intention exists under Section 2-701, a provision in a governing
instrument that relates to the inclusion or exclusion in a class gift of a child born to parents who
are not married to each other but does not specifically refer to a child of conceived by assisted
reproduction or a gestational child does not apply to a child of conceived by assisted
reproduction or a gestational child. Except as otherwise provided in subsections (c) and (d), a
class gift in a governing instrument which uses a term of relationship to identify the class
members is construed in accordance with the rules for intestate succession.
28
(c) [Relatives by Marriage In-Laws.] Terms of relationship in a governing instrument
that do not differentiate relationships by blood from those by marriage, such as uncles, aunts,
nieces, or nephews, are construed to exclude relatives by marriage, A class gift in a governing
instrument excludes in-laws unless:
(1) when the governing instrument was executed, the class was then and
foreseeably would be empty; or
(2) the language or circumstances otherwise establish that relatives by marriage
in-laws were intended to be included.
(d) [Half-Blood Relatives.] Terms of relationship in a governing instrument that do not
differentiate relationships by the half blood from those by the whole blood, such as brothers,
sisters, nieces, or nephews, are construed to include both types of relationships.
(e) [Transferor Not Genetic Parent.] In construing a dispositive provision of a
transferor who is not the genetic parent, a child of a genetic parent is not considered the child of
that genetic parent unless the genetic parent, a relative of the genetic parent, or the spouse or
surviving spouse of the genetic parent or of a relative of the genetic parent functioned as a parent
of the child before the child reached [18] years of age.
(f) [Transferor Not Adoptive Parent.] In construing a dispositive provision of a
transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive
parent unless:
(1) the adoption took place before the adoptee reached [18] years of age;
(2) the adoptive paren[t was the adoptee’s stepparent or foster parent; or
(3) the adoptive parent functioned as a parent of the adoptee before the adoptee
reached [18] years of age.
29
(d) [Transferor Not Parent.] In construing a governing instrument of a transferor who is
not a parent of an individual, the individual is not considered the child of the parent unless:
(1) the parent, a relative of the parent, or the spouse or surviving spouse of the
parent or of a relative of the parent performed functions customarily performed by a parent
before the individual reached [18] years of age; or
(2) the parent intended to perform functions under paragraph (1) but was
prevented from doing so by death or another reason, if the intent is proved by clear and
convincing evidence.
(g)(e) [Class-Closing Rules.] The following rules apply for purposes of the class-closing
rules:
(1) A child in utero at a particular time is treated as living at that time if the child
lives 120 hours after birth.
(1) If a particular time is during a gestational period that results in the birth of an
individual who lives at least 120 hours after birth, the individual is deemed to be living at that
time.
(2) If a child of assisted reproduction or a gestational child is conceived
posthumously and the distribution date is the deceased parent’s death, the child is treated as
living on the distribution date if the child lives 120 hours after birth and was in utero not later
than 36 months after the deceased parent’s death or born not later than 45 months after the
deceased parent’s death.
(2) If the start of a pregnancy resulting in the birth of an individual occurs after
the death of the individual’s parent and the distribution date is the death of the parent, the
individual is deemed to be living on the distribution date if [the person with the power to appoint
30
or distribute among the class members received notice or had actual knowledge, not later than [6]
months after the parent’s death, of an intent to use genetic material in assisted reproduction and]
the individual lives at least 120 hours after birth, and:
(A) the embryo was in utero not later than [36] months after the deceased
parent’s death; or
(B) the individual was born not later than [45] months after the deceased
parent’s death.
(3) An individual who is in the process of being adopted when the class closes is
treated as adopted when the class closes if the adoption is subsequently granted.
(4) An individual who is in the process of being adjudicated a child of a de facto
parent when the class closes is treated as a child of the de facto parent when the class closes, if
the parentage is subsequently established.
Legislative Note: A state should consider enacting a provision requiring a fiduciary, when
notifying beneficiaries of the fiduciary’s appointment, to inquire whether a beneficiary has
knowledge of an intent to use genetic material in assisted reproduction. A state also should
consider requiring the fiduciary to indicate that written notice must be given to the fiduciary
within a designated time.
If a state has not enacted the Uniform Parentage Act (2017), it should consider adding
the following language as a new subsection in this section:
A class gift in a governing instrument of a transferor who is not the de
facto parent of an individual is not construed to treat the individual as the
child of the de facto parent if:
(1) the de facto parent opposed being adjudicated a parent; or
(2) the de facto parent or the individual died before the proceeding
to adjudicate parentage was commenced.
In a state that has enacted the Uniform Parentage Act (2017), no such provision relating
to involuntary or posthumous de facto parentage is needed.
***
31
PART 8. GENERAL PROVISIONS CONCERNING PROBATE AND NONPROBATE
TRANSFERS
***
SECTION 2-802. EFFECT OF DIVORCE, ANNULMENT, AND DECREE OF
SEPARATION.
(a) An individual who is divorced from the decedent or whose marriage to the decedent
has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he [or
she] the individual is married to the decedent at the time of death. A decree of separation that
does not terminate the status of spouse marriage is not a divorce for purposes of this section.
(b) For purposes of [Parts] 1, 2, 3, and 4 of this [article], and of Section 3-203, a
surviving spouse does not include:
(1) an individual who obtains or consents to a final decree or judgment of divorce
from the decedent or an annulment of their marriage, which decree or judgment is not recognized
as valid in this state, unless subsequently they participate in a marriage ceremony purporting to
marry each to the other or live together as spouses;
(2) an individual who, following an invalid decree or judgment of divorce or
annulment obtained by the decedent, participates in a marriage ceremony with a third individual;
or
(3) an individual who was a party to a valid proceeding concluded by an order
purporting to terminate all marital property rights.
***
32
SECTION 2-803. EFFECT OF HOMICIDE ON INTESTATE SUCCESSION,
WILLS, TRUSTS, JOINT ASSETS, LIFE INSURANCE, AND BENEFICIARY
DESIGNATIONS.
(a) [Definitions.] In this section:
***
(3) “Revocable”, with respect to a disposition, appointment, provision, or
nomination, means one under which the decedent, at the time of or immediately before death,
was alone empowered, by law or under the governing instrument, to cancel the designation in
favor of the killer, whether or not the decedent was then empowered to designate himself [or
herself] the decedent in place of his [or her] the killer and whether or not the decedent then had
capacity to exercise the power.
***
(b) [Forfeiture of Statutory Benefits.] An individual who feloniously and intentionally
kills the decedent forfeits all benefits under this [article] with respect to the decedent’s estate,
including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead
allowance, exempt property, and a family allowance. If the decedent died intestate, the
decedent’s intestate estate passes as if the killer disclaimed his [or her] the intestate share.
***
(f) [Wrongful Acquisition of Property.] A wrongful acquisition of property or interest
by a killer not covered by this section must be treated in accordance with the principle that a
killer cannot profit from his [or her] the killer’s wrong.
33
SECTION 2-804. REVOCATION OF PROBATE AND NONPROBATE
TRANSFERS BY DIVORCE; NO REVOCATION BY OTHER CHANGES OF
CIRCUMSTANCES.
(a) [Definitions.] In this section:
***
(2) “Divorce or annulment” means any divorce or annulment, or any dissolution
or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse
within the meaning of Section 2-802. A decree of separation that does not terminate the status of
spouse marriage is not a divorce for purposes of this section.
***
(4) “Governing instrument” means a governing instrument executed by the
divorced individual before the divorce or annulment of his [or her] the individual’s marriage to
his [or her] the divorced individual’s former spouse.
(5) “Relative of the divorced individual’s former spouse” means an individual
who is related to the divorced individual’s former spouse by blood, adoption, application of the
rules establishing parent-child relationships under [[Subpart] 2 of [Part] 1] or affinity and who,
after the divorce or annulment, is not related to the divorced individual by blood, adoption,
application of the rules establishing parent-child relationships under [[Subpart] 2 of [Part] 1] or
affinity.
(6) “Revocable,” with respect to a disposition, appointment, provision, or
nomination, means one under which the divorced individual, at the time of the divorce or
annulment, was alone empowered, by law or under the governing instrument, to cancel the
designation in favor of his [or her] the divorced individual’s former spouse or relative of the
34
former spouse, whether or not the divorced individual was then empowered to designate himself
[or herself] the divorced individual in place of his [or her] the former spouse or in place of his [or
her] former spouse’s relative of the former spouse and whether or not the divorced individual
then had the capacity to exercise the power.
(b) [Revocation Upon Divorce.] Except as provided by the express terms of a governing
instrument, a court order, or a contract relating to the division of the marital estate made between
the divorced individuals before or after the marriage, divorce, or annulment, the divorce or
annulment of a marriage:
(1) revokes any revocable:
(A) disposition or appointment of property made by a divorced individual
to [his or her] the divorced individual’s former spouse in a governing instrument and any
disposition or appointment created by law or in a governing instrument to a relative of the
divorced individual’s former spouse,
***
ARTICLE III
PROBATE OF WILLS AND ADMINISTRATION
***
PART 7. DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
***
SECTION 3-703. GENERAL DUTIES; RELATION AND LIABILITY TO
PERSONS INTERESTED IN ESTATE; STANDING TO SUE.
(a) A personal representative is a fiduciary who shall observe the standards of care
applicable to trustees. A personal representative is under a duty to settle and distribute the estate
35
of the decedent in accordance with the terms of any probated and effective will and this [code],
and as expeditiously and efficiently as is consistent with the best interests of the estate. He The
personal representative shall use the authority conferred by this [code], the terms of the will, if
any, and any order in proceedings to which he the personal representative is party for the best
interests of successors to the estate.
(b) A personal representative may not be surcharged for acts of administration or
distribution if the conduct in question was authorized at the time. Subject to other obligations of
administration, an informally probated will is authority to administer and distribute the estate
according to its terms. An order of appointment of a personal representative, whether issued in
informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs
of the decedent if, at the time of distribution, the personal representative is not aware of a
pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy
proceeding, a formal proceeding questioning his the personal representative’s appointment or
fitness to continue, or a supervised administration proceeding. This section does not affect the
duty of the personal representative to administer and distribute the estate in accordance with the
rights of claimants whose claims have been allowed, the surviving spouse, any minor and
dependent children and any pretermitted child of the decedent as described elsewhere in this
[code].
(c) Except as to proceedings which do not survive the death of the decedent, a personal
representative of a decedent domiciled in this state at his death has the same standing to sue and
be sued in the courts of this state and the courts of any other jurisdiction as his the decedent had
immediately prior to death.
(d) A personal representative may not be surcharged for a distribution that does not take
36
into consideration the possibility of posthumous pregnancy unless the personal representative[,
not later than [6] months after the decedent’s death,] received notice or had actual knowledge of
an intent to use genetic material in assisted reproduction.
Legislative Note to Subsection (d): The bracketed language is provided if a state wishes to
impose a time-limit on the receipt of notice.
37